How ODSP is Paid
(a) To Whom is ODSP Paid
(b) Time and Manner of Payment of Income Support
(c) Manner of Payment
(d) First Month of Income Support
(e) Minimum Cheque
(f) ODSP Trustees
. Overview
. ODSP Fidiciaries
. Recipient Consent and Input re Fiduciary Appointment
. Comment
. Director's Governance Over the Fiduciary
(g) Third Party Payments
(h) Limits on Alienation and Execution of Income Support
. Overview
. Alienation or Transfer
. Execution
. Exception for Support Orders
. Exception for Social Assistance Overpayments
. Maximum Monthly Overpayment or Support Deductible From On-going Income Support
. Other Exceptions

This chapter covers the application and payment-related procedures of ODSP.

A closely-related topic: "re-applications", are typically more useful as a tactical response to a suspension or cancellation - either with or before an appeal being launched. For that reason that topic is dealt with in Ch.11, s.(2)(g): "Director Decisions: Cancellation, Suspension and Reduction Decisions: Re-Applications and Re-instatements".

There are new, somewhat complicated transition rules governing new "date of grant" provisions - effective 25 May 2006 with some retroactive effect. These need to be reviewed carefully for retroactive payment eligibility.

There are three typical routes by which people apply for ODSP: directly to the ODSP office, indirectly through the welfare (Ontario Works) office, or by "transfer" at age 18 from being a "severely handicapped child" already receiving a form of ODSP coverage (see Ch.5).

The transfer process from being a severely handicapped child to "adult" ODSP is normally anticipated by the ODSP workers in discussion with the recipient and their family, and initiated by them. The other routes are discussed below.

The vast majority of applicants are seeking to establish their medical status as a "person with a disability" (PWD). Some however may obtain ODSP eligibility on categorical grounds (see Ch.2, s.8: "Claimants: Substitutes for PWD Status").

If the applicant is unable to effectively make the application themselves (typically for mental disability reasons), a 'responsible person' may make and sign an application for them [Reg s.26(4); Act s.2 "applicant"]. The role of such trustees and "fiduciaries" is discussed below in s.3(f) "ODSP Trustees".

Anyone seeking to establish PWD status will at some point in the process receive a set of medical forms (the "Health Status and Activities of Daily Living Reports") from the "Disability Adjudication Unit" (DAU) to take to their doctor/s for completion. When these medical forms are filed with the DAU the application is considered "complete" and will be assessed for medical
eligibility.

An extensive discussion of the ODSP medical adjudication process, the PWD legal test, and related legal tactics is found in Ch.9: "Persons with a Disability".

(b) Direct Applications

. Where to Apply

Persons not receiving welfare (Ontario Works) may simply approach their local ODSP (Ministry of Community and Social Services) office and request that the application process be initiated. Technically any ODSP office may take an application regardless of where the person lives in the province, but application at the local office where possible is more efficient and will be expected (at best your file will be transferred to the local office, which will just slow things down).

The same applies to homeless applicants, who should apply to the office closest to the area where they usually are. Typically homeless persons can access welfare more immediately and get their ODSP referral through welfare (see below).

. Process

A direct application goes in two-stages, the first being non-medical eligibility(identification and financial) and the second being the medical determination of "person with a disability" (PWD) status.

Once you have contacted the ODSP office and set up an 'intake appointment', the office will advise you of various documents that they want the applicant to bring to the meeting (see below). The initial meeting will take place where a sworn application is taken (along with signed "Consents to Disclose and Verify Information" and possibly "Agreements to Reimburse and Assignments", see below). This part of the process is almost identical to a typical welfare application process (a longish list of personal identification, family status and financial questions, examination and copying of your documents). At the intake appointment the ODSP intake worker will try to ascertain [Reg s.21]:

Note as well that non-disabled adult members of the applicant's benefit unit (ie. spouses and dependent adults: see Ch.2 "Claimants" for definitions) will usually be required to complete "welfare workfare" participation agreements as part of the ODSP application process (see Ch.13: "Workfare") [Reg s.6]. Applicants who apply through welfare will probably have such agreements already in place.

ODSP administration always assesses non-medical eligibility criteria before medical criteria, on the theory that it is more efficient and might save the effort of the medical assessment. As such income levels [Ch.7], asset levels [Ch.8] and other basic categorical issues [Ch.2" "Claimants", and Ch.6: "Information Eligibility"] must satisfy the eligibility requirements before a medical "package" will even be issued to the applicant.

This sequence can result in prejudice to an applicant when non-medical eligibility disputes arise and the Director refuses to issue the medical "package" until they are resolved - thus delaying "completion" of the application (which in turn conditions any eventual "date of grant"). Advocates should be careful in such situations to document and dispute (ie. send letters) requesting the initiation of the medical phase DESPITE the Director's dissatisfaction with the non-medical phase results. In such situations I have simply filed completed medical forms (copied blank from other client files), and thus established a fair "date of grant".

. Eligibility Information

The information and "verification" evidence required to accompany an application for social assistance is a broad topic. It is critically discussed at length in its own chapter: Ch.6 "Information Eligibility" - where the main theme is that the demands of ODSP Directors for documentary evidence of entitlement go well beyond what they are legally entitled to.

As a practical matter however, the Director will expect (for all members of the benefit unit unless otherwise noted) - full information and evidence with respect to [Reg s.14(2)] the following (you can expect a letter listing these things before the appointment takes place):

any other special status: eg. immigration status, educational enrolments, etc.

. Application Form

The application (and accompanying non-medical forms, see below) must be signed by the applicant, the spouse (including same-sex spouse) if any, and any other dependents required by the Director (normally minors will not be required to sign) [Reg s.16(1)(2)].

The practice is for workers to ask questions of the applicant, complete the forms themselves, and then present the completed application form to the applicant to be sworn and signed before them - as an affidavit (note that all ODSP workers are "Commissioners for the Taking of Affidavits" [Act s.51]).

. Consents to Disclose and Verify Information

"Consent to Disclose Information" forms are also required for the application. These Consent forms [presently Form 0985] embody the applicant's permission for ODSP to contact and receive information from third parties, such as employers, banks, schools, other government departments, etc. ODSP also has legal authority to require the members of the benefit unit to sign consent forms in the manner required by the third parties, and to have consent forms updated [Reg s.15].

Use of these Consents is fraught with a great deal of abuse - in which ODSP practice is quite complicit. On their face these forms only purport to justify the providing of "information" by third parties to the Director. As a practical matter however what are provided almost invariably in response to these requests are copies of original documents or business records which - under the rubric of satisfying the "information" request, end up providing the Director with documentary evidence. It is this same documentary evidence which then finds itself entered into court against the recipient should fraud charges follow at any point. This is a key aspect of the tenuous situation that social assistance recipients find themselves in with respect to the criminal procedural protections advanced to other citizens by the Charter (see Ch.14: "Fraud and Prosecutions").

. Agreements to Reimburse and Assignments and Directions

Where a member of the benefit unit has a pending claim or expected future payment (eg. EI back-pay or a pending motor vehicle accident claim), the Director will likely also require that an "Agreement to Reimburse and Assignment and Direction" be executed by them. The legal effect of these documents is dicsussed further at Ch.8, s.4(c): "Asset Rules: ODSP Security Requirements: "Agreements to Reimburse" and "Assignments and Directions") [Reg s.13].

. DAU Medical Package

Once ODSP is satisfied with the financial and identification part of the application, they will provide the applicant with the blank "DAU medical package", which consists of the "Health Status and Activities of Daily Living Report" and medical releases (so the DAU can get medical reports if they want). These should be provided to your physician (typically, but not always your family doctor or GP) as soon as possible, with a request to return them to you promptly. The DAU will expect originally completed, unaltered and signed medical forms - applicants should ALWAYS make copies of these before they are mailed in.

If the medical forms are not filed within 90 days after being issued, then the application will be "deemed" to have been withdrawn [Reg s.16(5]. Normally ODSP issues reminder letters before this is done, and in any event late forms will almost always be accepted if a time extension is requested (a brief note making this request should be sent in with the late forms). If the delay is prolonged they may want to re-do the initial intake and take a new main application.

On the day when these medical forms are filed with the DAU the application is considered "complete" and will be assessed for medical eligibility. If the application is eventually granted it is this date that (usually) will be considered the "date of grant" (see s.4 below).

(c) "Welfare Referral" Applications

By far the most common route to ODSP is through the welfare (Ontario Works) system. Ontario Works and ODSP are "sister" programs and very similar (often legally identical) in structure. There is a close working relationship between local welfare and local ODSP offices.

Welfare (Ontario Works) application forms double as ODSP application forms (they are in fact identical). If welfare intake feels that there is a chance that the applicant might also be eligible for ODSP (or if the applicant requests) the worker will usually make a "referral to the Disability Adjudication Unit" (DAU). The DAU is the branch of the ODSP Director's office that assesses medical eligibility. From this point the process is identical to that discussed immediately above (see "DAU Medical Package").

Applications initiated through welfare have the advantage that the non-medical eligibility issues will usually have already been resolved with welfare because welfare income and asset maximums are lower than for ODSP - so welfare financial eligibility is as 'good' as ODSP financial eligibility for initial intake purposes (although they will be re-checked at an ODSP intake meeting after medical eligibility is established).

Note that welfare recipients who are pending their FIRST (only the first) ODSP medical eligibility determination are subject to the higher (ie. more lenient asset maximums) for the duration of the application process (see the welfare program: Ch.7, s.3: "Asset Rules: Asset Limits Where Pending First Time ODSP Application".)

(d) "Rapid Re-Instatement"

. Overview

"Rapid re-instatements" are really just a way to address the common situation where a recipient loses eligibility periodically due to any of a variety of circumstances, but "re-gains" eligibility just as often (most commonly with fluctuating earnings income). No one (including the Director) wants them to have to go through the whole re-application process from the ground up each time - thus the relative term "rapid reinstatement".

Note:
However - when full "re-applications" ARE required, they are dealt with in Ch.11, s.(2)(g): "Director Decisions: Cancellation, Suspension and Reduction Decisions: Re-Applications and Re-instatements".

It is important to note that where income support has been temporarily reduced, it shall not be reinstated (even after the reduction period expires) UNLESS THE RECIPIENT SO REQUESTS [Reg 26(2)].

. Within Medical Review Period Regardless of Reason for Disentitlement

This provision applies to all persons granted ODSP eligibility as a "person with a disability" - but NOT to grand-parented FBA recipients (see below). Basically, any such persons are entitled to rapid reinstatement - regardless of the reasonfor the disentitlement - as long as their medical PWD status is still "good".

Think of medical (PWD) eligibility as (usually) having a limited shelf-life(typically two years). Usually, once medical eligibility (as a PWD) is established, it is subject to scheduled "review date" (see Ch.9 "Persons with a Disability"). If such a recipient's eligibility is broken and they re-apply before that "review date" is expired, then the PWD status is "still good" [Reg s.19] - though they will still have to prove all the other aspects of eligibility: income, assets, information, Ontario residence, etc.

Not all PWD recipients have "review dates", sometimes the DAU (or the Social Benefits Tribunal if a successful appeal is conducted) will waive it, effectively making medical eligibility permanent.

. "Grand-Parented FBA" Recipient Rapid Re-Instatement When Disentitlement Due to Earnings Income

The broad re-instatement provision for PWD-eligible recipients (above) does not apply to FBA-"grand-parented" recipients. Recall from Ch.2, s.8(b): "Claimants: Substitutes for PWD Status: Grand-Parented FBA Recipients", that - except for single parents - most recipients under the old Family Benefits Act (FBA) were "grand-parented" (ie. given automatic eligibility) into the (then new) ODSP program in June 1998. Like the former FBA program eligibility, this "grand-parented" ODSP status is generally considered permanent, without the need for the periodic medical re-assessments that "normal" ODSP recipients have to go through (see Ch.9: "Person With a Disability").

However, "grand-parented FBA" status can be lost (subject to one exception, below) by ANY break (even a day) in the "new" grand-parented ODSP eligibility [Reg 4(2)]. This can occur for any number of the reasons explored elsewhere in this program, including: moving out of the province, excess assets, failure to provide eligibility information, etc.

The lone exception is that where the break in eligibility is due to 'excess employment or business income'. In this case, when the earnings drop back down to eligibility levels - the grand-parented status can be re-instated.

Note that prior to 01 November 2006 the re-instatement was only available within 12 months after the break in eligibility, but changes at that date eliminated that requirement and this reinstatement provision is no longer subject to any time limit [Reg s.20].

"Grand-parented" recipients losing that status for any reason OTHER than excess earnings income will either have to appeal that reason on its own merits (see Ch.12: Appeals and Other Remedies) - or re-apply for fresh ODSP medical eligibility (see Ch.9: "Persons With a Disability", and Ch.10: "Applications and Procedures") as a brand-new applicant.

The normal payment procedure is for cheques or direct deposits to be made payable to the "applicant" - which in a single adult benefit unit will of course be the adult. In a spousal benefit unit the choice of who becomes the "applicant" is up to the couple, with the non-applicant defaulting into becoming the "dependent spouse" (see Ch.2 "Claimants").

The 'funnelling' of social assistance entirely to one or the other of the spouses has been a cause of a great deal of concern due to the potential existence of imbalances of power within relationships. This topic is critically discussed in the welfare program in Appendix 4: "The Concept of Spousal Dependency".

A rare variation from this practice occured where retroactive payments become due to a spousal couple who had since separated. There a court ordered that the payment be split evenly between the two: Dowswell v. Ontario (Director, ODSP) [2006] OJ #973 (QL) (Div Ct).

(b) Time and Manner of Payment of Income Support

ODSP is paid monthly, except when retroactive payments are made [Reg s.53]. ODSP is paid 'in arrears', which means for example that July's cheque is paid at the end of July.

This contrasts with welfare (Ontario Works), which is paid at the beginning of the month to which it applies.

(c) Manner of Payment

Historically, ODSP was typically paid in the form of a cheque, but can also be paid by pre-authorized direct deposit to a designated bank account. By new regulation authority granted in 06 November 2015, the Director has authority to direct the "manner" of payment [Reg 56(4)], apparently eliminating the choice that a recipient formerly in the matter.

(d) First Month of Income Support

Applications are rarely granted cleanly at the beginning of a month, so rules apply for the calculation of the first "part-month" of income support.

"Budgetary requirements" (which, after any deductions determine the amount of "income support": see Ch.3 "Income Support") for the month in which eligibility is established (the "first month") are calculated as the total of "shelter" and "basic needs" as follows [Reg s.29(2)]:

SHELTER: The LESSER of

1. one month's shelter component as per normal calculation, or

2. the shelter expense actually owing on the date of eligibility.

BASIC NEEDS: The basic needs component as per normal calculation for the month, prorated by the number of days remaining in the month from the date of eligibility.

Basically, if you have already paid your rent that month, you won't get compensated for that - but if you haven't then you will get a shelter allowance component. Basic needs are a simple pro-rated calculation depending on the day of the month that eligibility was granted.

(e) Minimum Cheque

If the amount of any payment of income support is determined to more than zero but less than $2.50, the amount shall be $2.50 [Reg s.52].

(f) ODSP Trustees

. Overview

Where the Director believes that the recipient - though an adult - "is using or is likely to use his or her income support in a way that is not for the benefit of a member of the benefit unit", the Director may - at their discretion - refuse to make direct payment to the recipient [Act s.12(1)]. I will refer to this as the "misuse standard".

In such cases the Director will first look for an existing "guardian of property" or "trustee" and will make the payments to them [Act s.12(2)]. If none exists however the Director may appoint someone to act as "ODSP trustee". All persons are known generally as "fiduciaries" because they owe a special duty of care to their "beneficiaries".

These provisions, when applied, are sometimes the subject of considerable disagreement by recipients who wish full control of their income support funds (on this issue, see "Recipient Consent and Input re Fiduciary Appointment", below.). My experience has been that they are underused, particularly in the relatively common situation where addiction forms a part of the diagnostic makeup of recipients.

. ODSP Fidiciaries

As noted, if there are pre-existing trustees or "guardians of property" then the income support shall be paid to them. Such persons are "fiduciaries" in that they owe a duty of special care towards the "beneficiary" or recipient. Examples of common "fiduciaries" in law generally include:

guardians (under the Substitute Decisions Act) or "committees" for the mentally-incapable.

ODSP fiduciaries are generally not entitled to any fee, compensation, reward or reimbursement for costs or expenses for any services rendered regarding receiving and disbursing ODSP payments [Act s.12(3)]. Exceptions to this prohibition are where the ODSP trustee is the Public Guardian and Trustee or "an organization or agency under contract to the delivery agent or to the Ministry to act on behalf of persons" [Reg s.49(1)]. In these cases the ODSP trustee may receive compensation (from the province or the ODSP Director) for "expenses incurred and services provided in acting for the recipient". In no event shall such compensation come from the income support amount [Reg s.49(2)].

. Recipient Consent and Input re Fiduciary Appointment

As noted above, the decision of the Director to appoint an ODSP trustee is sometime met with considerable resistance by a recipient. This already charged situation is not assisted by the ambiguous structuring of the law conditioning such decisions, quoted here:

49(4)
The Director shall, if feasible, obtain the consent of a recipient to an appointment under section 12 of the Act, and if the recipient so requests, shall give the recipient an opportunity to suggest someone else to act for him or her or to make submissions as to why the appointment should not be made or should be discontinued.

It is my best interpretation of the law (I have located no cases on the issue) that the decision to appoint an ODSP fiduciary - as long as it is exercised reasonably and in accordance with the above-cited "misuse standard" - is one within the Director's sole discretion. There is no recipient right to 'veto' such decision. Further, as the decision to appoint a trustee is not one which effects eligibility for or the amount of income support (see Ch.12: "Appeals and Other Remedies"), it is not one that is appealable to the Social Benefits Tribunal.

That said (and here is the source of the ambiguity), the Director is under a plain duty to "if feasible, obtain the consent of a recipient to an appointment" [Reg s.49(4)]. Recipients objecting to the decision to make an appointment can point to this provision as an effective 'veto' by them over the decision - for what other meaning can be attributed to the term "consent"? The problem of course arises with the conditioning phrase "if feasible". If one takes it as conditioning the duty to "seek" consent - which is a logical prerequisite to "obtaining" it - then the resisting recipient's argument is strong as the phrase "if feasible" can be read meaningfully as dispensing with the duty to "seek' in situations of profoundly diminished mental capacity on the part of the recipient. If however, as is consistent with the actual wording of s.49(4), the phrase "if feasible" conditions the actual "obtaining" of the consent - then the provision is better read as allowing the Director to proceed with the appointment regardless even in the face of recipient non-consent.

The ambiguity is furthered when we examine the second duty of the Director located in s.49(4), which is to give the recipient - should they so request - an oppourtunity to make submissions on the decision to make an appointment, the identity of the fidiciary, and/or why it should be discontinued. A recipient's indignation over an appointment may understandably be furthered as these "consent" and "submissions" provisions conspire to present the illusion of natural justice in such situations.

. Comment

Ironically, it is this latter right of recipients to make submissions that may ultimately immunize the scheme from Charter challenge. Most courts would require such a right as an aspect of achieving a reasonable accomodation [s.1 Charter]between the Director's (also fiduciary) duty to look after the best interests of persons of diminished or volitional mental capacity, and the dignity right of the recipient under s.15 of the Charter [equality rights] to manage their own finances.

However this accomodation could have been achieved with the "submissions" right alone. The gratuitous addition of the illusory "consent" provisions are just maddeningly paternalistic to recipients, many of whom already feel marginalized and abused in their life situation.

All that said, as a tactical matter I have often successfully used the filing of a signed "Consent to Appointment of Trustee" form in ODSP "person with a disability" (PWD) appeal hearings before the Social Benefits Tribunal where the medical appellant's profile includes addiction or substance abuse. While legally irrelevant to the issue of PWD, it is legally relevant to the purpose of the ODSP program [Act s.1], which includes being "accountable to the taxpayers of Ontario". There are many members before whom this concern is highly important.

. Director's Governance Over the Fiduciary

The Director shall periodically review the continued need for a ODSP trustee appointment, and consequent thereof may revoke it [Reg s.49(5)].

ODSP "fiduciaries" are required to report and account to the Director for the disbursement of the income support they receive for the recipient [Act s.12(4)]. Accounts shall be provided to the Director annually and must satisfy any additional Director requests for "supplementary information, monthly or otherwise, including receipts" [Reg s.49(3)].

If the ODSP trusteeship is financially abused, the Director may make additional payment to or on behalf of the recipient of up to one month's income support, IF "the benefit unit is unable to provide for its basic needs and shelter" [Reg s.49(6)].

(g) Third Party Payments

The Director may make payment of income support directly to third parties for basic needs and shelter (typically this is used for direct payment of rent to landlords) [Act s.13]. It is also called "pay direct".

The Director must make sure that such debts are "bona fide" (ie. real) and may - in the event of dispute as to such debt, or at the request of the recipient - pay part of the income support into court or to a neutral third party [Reg s.50].

(h) Limits on Alienation and Execution of Income Support

. Overview

Subject to the exceptions noted below, ODSP law prohibits income support being subject to [Act s.18(1)]:

"alienation or transfer" by the recipient; and

"garnishment, attachment, execution, seizure or receivership under any other Act."

These prohibitions apply even if the income support has been paid into a recipient's account at a financial institution [Act s.18(5)]. This aspect of the prohibition can create a problem of "tracing" the origin and expenditure of mixed funds which is discussed briefly in Ch.8 "Asset Rules: Asset Exemptions: Overview".

. Alienation or Transfer

Firstly, these prohibitions try to prevent the recipient 'dealing' in their income support by way of 'selling' it or 'assigning' it to third parties, as security or otherwise. An "assignment" is a transfer - typically in the form of a document signed by the recipient - purporting to 'give' money to a third party in the same way that one might 'endorse a cheque' over to someone else (or sell a car for that matter). It is commonly used in association with another form of legal authority called a "direction", which directs a debtor to pay monies it owes a creditor to a third party.

Indeed, ODSP Directors use assignment and directions as a standard form of securing payment to themselves of future non-income support entitlements of the recipient: Ch.8, s.4(c): "Asset Rules: ODSP Security Requirements: "Agreements to Reimburse" and "Assignments and Directions".

"Attachment" is a species of transfer and refers to the private enforcement (as opposed to "execution" through the court as discussed below) of some form of debt collection or security entitlement, such as a mortgage, general security agreement, court order or such.

. Execution

Secondly, these provisions prohibit (except as otherwise noted in this section) the application of statutorily-based collection methods ("execution") against the income support (ie. garnishment, etc). These are always grounded in a court order, or some form of tribunal or statute-based right that has been registered with a court for enforcement. A fuller explanation of these collection methods is found in the Chapter "Collections" in the Small Claims Court program.

There are other forms of "execution" - particularly common law liens - which are not statutorily based.

In McIntosh v Laronde [1998] OJ #5988 (Div Ct) an electronically-deposited FBA allowance was paid into a bank account, and the bank then applied an outstanding garnishment against a portion of the fund therein. The bank argued, against an earlier version of the statutory provision above-quoted, that the monies once deposited effectively became the property of the bank, with the bank simply "owing" a sum to the depositor as a debtor - thus allowing the garnishment. The three-judge court panel rejected this argument largely on policy grounds, re-affirming the obvious intent of the legislation.

In Kaufman v Royal Bank of Canada 34 CPC (3d) 334 (Small Claims Court, 1994) a bank account held by the plaintiff was both overdrawn and subject of a third party garnishment. When the plaintiff attended the bank to cash (not deposit) cheques, the bank seized the funds in satisfaction of the debts. The plaintiff's lawsuit for damages was successful, the court ruling that the mere 'cashing' of a cheque did not establish a debtor-creditor relationship sufficient to ground the seizures on. While this case is unrelated to the statutory non-seizure protection enjoyed by social assistance payments it may be relevant to recipients (who should NOT assume that banks know or care that this is the law).

. Exception for Support Orders

One exception to the above prohibitions is that the Director may deduct from income support: "the amount of a support deduction order that is enforceable against a member of the benefit unit under section 20 of the Family Responsibility and Support Arrears Enforcement Act, 1996" [Act s.18(2)].

These include outstanding child and spousal support orders under the Family Law Act or otherwise. Such deductions are NOT made payable directly to the spouse or child (as the case may be) but are paid to "the Director of the Family Responsibility Office of the Province of Ontario" or similar entity in other jurisdictions [Reg s.62(2)].

. Exception for Social Assistance Overpayments

"Overpayment" assessments made against a recipient under any Ontario social assistance program (Ontario Works, ODSP, General Welfare Assistance and Family Benefits Act) are expressly recoverable by way of deduction from income support [Act s.14(1)(3)(4),15(1)]. Overpayments are discussed extensively in Ch.11, s.3: "Director Decisions: Overpayments".

. Maximum Monthly Overpayment or Support Deductible From On-going Income Support

Where these overpayment or support order exceptions to seizure do apply, the maximum that may normally be deducted from ongoing income support by the Director to satisfy the debt is 10% of current income support. More may be deducted if the recipient so consents [Act s.15(2), Act 18(3); Reg s.51(1)]. It is my experience that the Director often voluntarily reduces this to 5% in the case of overpayments.

However, any social assistance arrears payments (ie. lump sum back-payments of either welfare or ODSP to the recipients) may be deducted in full against outstanding overpayment or support order arrears [Reg s.51(1)].

. Other Exceptions

Authority exists under s.18(2) of the Act for further exceptions for "government debts", but to date no regulations have been passed creating them.

"Date of grant" refers to the commencement date of income support after eligibility is granted. This issue was touched on in s.2 regarding the bifurcated (split) application process (non-medical/ medical) and how this can sometimes delay eligibility determination past the date that the applicant has "proven" eligibility.

Typically, "date of grant" issues have arisen due to delay in the adjudication process for PWD medical status. The old "four-month rule" [old Reg s.17] governing these situations, which was changed in May of 2006, was that - regardless of the reason - the "date of grant" was the LATER of:

the date that the application was completed; and

four months before the Director's decision.

Thus whenever the adjudication process took MORE than four months the (eventually-successful) applicant's (retroactive) date of grant would never be more than four months before the eventual decision, a clear prejudice to the applicant caused solely by governmental delay.

Note that the old rule operated based on the date of the Director's decision EVEN IF it was a denial of eligibility that was later reversed on appeal to the Social Benefits Tribunal. In those cases the appeal decision effectively "reversed" the Director's decision as it was made at that date (the Tribunal had no jurisdiction to change the "date of grant" to correct the prejudice created by the old Reg s.17).

(b) The "New" Rule and Its Implications

In May 2006, shortly after the Ombudsman brought the matter to media attention (it was no great secret - the injustice had been made plainly known to the government by recipients and practitioners), the rule was changed. The new rule [Reg s.17(1)] gives the Director broad discretion to set the "date of grant":

Reg s.17(1)
On or after the completion of an application, the Director shall determine the effective date of eligibility for income support.

While this new rule eliminates the "four-month rule" discussed above, it has additional implications for the "jurisdiction" of the Director to establish the "date of grant". As noted above, the Director was legally constrained (even though the adjudication delay was their fault) to apply the "old" four-month rule in a mechanical fashion based on the date they MADE their eligibility decision - regardless of what it was.

The Director (through its adjudication arm, the "Disability Adjudication Unit" or DAU) is now free to establish a "date of grant" unrelated to the administrative act of filing the completed medical forms, and one more appropriately corresponding to the actual date (as shown by the medical evidence) that the applicant actually met the definition of "person with a disability".

This only makes sense as any correspondence between the date the application is completed and the "date of onset" of substantial impairments and functional restrictions (PWD status) is quite fortuitous. Medical evidence attesting to disability before - or even after - the date of application and the date of decision is the rule in ODSP eligibility appeal practice, not the exception. The Director is now free to have regard to what the evidence actually shows and to apply it in its "date of grant" decisions.

That said, given the DAU's past mind-set on this issue we should still expect "dates of grant" corresponding exactly to the date that the applicant completed their application (under the formalistic logic that the person only "requested" the entitlement at that time). Given the bifurcated application process - where all non-medical application stages are completed before medical forms are issued - the date that the application is completed is almost always the date that the medical forms (Health Status and Activities of Daily Living Report) is filed with the DAU.

Sadly (and while it is nice to see the "four-month rule" ended), the potential liberation from administrative formalism brought about by the new "date of grant" rule is limited to the Director - where it will likely be least appreciated. It has not been fully extended to the Social Benefits Tribunal, where it would have seen robust operation. While generally any "decision of the Director affecting eligibility for or the amount of income support" is appealable to the Social Benefits Tribunal [Act s.21(1)] - the ability of applicants to challenge the "date of grant" determination has been constrained by limitations in the Tribunal's jurisdiction (passed in conjunction with the new Reg s.17 "date of grant" rules [Reg 57]).

These limitations are explained more extensively in Ch.12 "Appeals and Other Remedies" - but amount to an inability to appeal "date of grant" except where the Director sets it AFTER the date of application. No doubt the province - already trying to reduce the SBT's caseload - was motivated to impose this limitation by the spectre of multiple SBT appeals seeking to back-date eligibility.

Case Note re Smith v ODSP (Div Ct, 2008)

The retroactivity issue arose for consideration in the case of Smith v Director(ODSP) [2008] OJ (QL) #302 (Div Ct). In this case the appellant was a grand-fathered FBA recipient who applied for a retroactive special diet allowance. Initially his application was granted effective November 2003 - commensurate with his date on which the medical evidence supporting the request was signed by the medical professional, and consistent with stated ODSP policy. However in 2005 he made similar application to back-date his eligibility to June 1998. The Director's refusal to grant this retroactivity was upheld by the SBT.

The appellant in Smith was ultimately unsuccessful in his quest for retroactive entitlement as the court held that the [pre-November 2005] special diet Regulation was "prospective in nature" (future-oriented) and "compensatory" (to compensate for actual expenses incurred, not a "flat-rate" entitlement). As Molloy J (for the court) stated:

It is not reasonable to interpret the Regulation as having a mandatory retroactive effect, such that any person upon filing the appropriate doctor's verification would be entitled to the allowance, regardless of whether he actually purchased or consumed any of the items on the special diet. It may be reasonable to interpret the Regulation as having retroactive effect in some circumstances, but it is not reasonable to interpret it as mandatory without regard to the surrounding facts.

This "compensatory" element - tying the amount of the allowance directly to specific medical evidence - has been adopted in the post-November 2005 special diet amendments with a vengeance - even to the point of capping the quantum of special diet allowance allocated any specific condition.

However, while the court noted that the special diet Regulation had been amended in November 2005 to eliminate any possible retroactivity interpretation - and while it declined in the case before it to grant the requested retroactivity - it did support the view that retroactivity was possible in some circumstances if [this view was obviously limited to situations where the wording of the granting legislation could bear that interpretation]. Without endorsing the specific factual elements that might achieve this result, the court did note that the SBT had considered the following factors:

laches (delay in making the application after he learned of its availability),

the apparent mental competence of the appellant;

the absence of medical evidence supporting the specifics of his special diet requirements.

While the last of these items would alone be fatal under the court's reasoning that the special diet allowance is "compensatory", some of the considerations (laches and incompetence) are reminiscent of factors that would be considered in the court's discretion to grant equitable relief.

The court in Smith left the door enticingly open to the possibility of discretionary retroactive social assistance eligibility - that is, eligibility PRE-dating the date of application. It appears that this potential exists where:

the legislation does NOT preclude the possibility on its face (ie. where it is ambiguous on the issue), and where

the fact situation is sympathetic - or as noted above - almost such as would, in other contexts, be sufficient to grant equitable relief.

highlight any personal handicaps which may have contributed to the 'late' request for entitlement [competence];

thoroughly evidence their entitlement through the period of requested retroactivity [good sense in any application, but perhaps essential in these situations];

be as scrupulous as possible in their own behaviour (ie. equitable "clean hands") - for example by advancing (and documenting) all communications to the Director regarding the retroactivity request as soon as both eligibility and need become plain to the applicant [laches].

(c) Retroactive Operation of the "New Rule"

This "new rule" of retroactivity is itself retroactive.

The Director will re-assess retroactive entitlement for any ODSP eligibility grants which applied the four-month rule from the commencement of the legislation (01 June 1998) to the commencement of the new rule (24 May 2006) [Reg s.17(2)].

Essentially, these retroactivity provisions simply take the income support paid in the ORIGINAL first month of eligibility (under the old rules), multiply it by the number of months lost under the four-month rule (number of months between application and decision, minus four) and then pay it to the recipient [Reg s.29.1]. Note however that any such 'back-payments' only include the non-benefit portions of income support (ie. they INCLUDE shelter, basic needs, special diet, pregnancy supplement) - but EXCLUDE the other benefits discussed in Ch.4 "Benefits" [Reg s.44(1.0.0.0.1)].

There is another twist. Where a recipient requests AND the Director is satisfied that the income support payable in that first (original) month (under the old rule) and that which would have been payable at the date the application was completed are "substantially change[d]", the Director may apply the normal income support rules (ie. an accurate assessment of income support due based on the facts at the time) to the retroactive months. Effectively this allows the retroactivity to be calculated at a more favourable rate if that is what the facts at the time support (ie. budgetary requirements and chargeable income, etc) [Reg s.29.1].

One more thing (hey - I didn't write these rules). Under normal welfare-to-ODSP transition rules, recipients on welfare at the date of application receive ODSP retroactivity from the first day of the month in which their new date of grant is established - AND get to keep the welfare they receive that month (there is an "overlap" because welfare is paid "in advance" while ODSP is paid "in arrears"). Under the "normal" transition rules the 'double-dipping' is allowed because the welfare payment is treated as non-chargeable income [see Ch.7, s.7(a): "Income Rules: Exempt Government Income: Payments from Ontario"]). However for these retroactive payments brought about by the elimination of the four-month rule, there will be a deduction for the "first month's" welfare payment made to avoid a "second" double-dipping into the income exemption.

Note that where the applicant was NOT on welfare at the date of application, the retroactivity is pro-rated to the actual date of grant, no matter what day of the month that occured on - and the above 'double-dipping' concerns do not apply.

Of course, like all situations of retroactive ODSP payments where the recipient has been on welfare in the newly-retroactive months, ODSP will reimburse welfare for what they paid the recipient [see sub-section (d) "Welfare Reimbursement", immediately below] during that time. The retroactive payments brought about by these re-assessment provisions should be no exception.

(d) Welfare Reimbursement

Setting aside the operation of new "date of grant" transitional rules (above), "retroactive" ODSP entitlement generally becomes significant either when an application is granted by the DAU, or when a successful ODSP eligibility appeal is conducted before the Social Benefits Tribunal. In either case, successful appellants who were on welfare during the adjudication and/or appeal process will have the amount of welfare (excluding that for month in which the date of grant falls) they received during that time paid back to welfare directly by ODSP. They will receive the difference (ODSP income support minus welfare assistance) in the form of one or more lump sum payments.

Advocates or recipients should be careful always to audit the amount of such retroactivity to ensure that both the ODSP income support calculations and the welfare deduction are accurate. While deductions will be stated in the ODSP lump sum retroactive cheque or deposit statements, they are rarely itemized in any coherent fashion. Advocates should calculate (or at least estimate) both ODSP income support and welfare assistance applicable to the period of retroactivity and compare this to the total of the lump sum/s received.

Any disagreements with the figures should be dealt with through the normal internal review and appeal processes set out in Ch.12: "Appeals and Other Remedies".

When a member of the benefit unit dies, the Director may continue their share of income support for a further three months "if the recipient has dependents included in the benefit unit at that time" [Reg s.53(3)]. Otherwise their share of income support simply terminates and budgetary requirements of the benefit unit (if there are any surviving members) are re-assessed as per the 'new' circumstances of the benefit unit.